Habib Khan v General Pharmaceutical Council (Scotland)

JurisdictionScotland
JudgeLord Wilson,Lord Neuberger,Lord Reed,Lord Carnwath,Lord Hodge
Judgment Date14 December 2016
Neutral Citation[2016] UKSC 64
CourtSupreme Court (Scotland)
Date14 December 2016
Habib Khan
(Respondent)
and
General Pharmaceutical Council
(Appellant) (Scotland)

[2016] UKSC 64

before

Lord Neuberger, President

Lord Wilson

Lord Reed

Lord Carnwath

Lord Hodge

THE SUPREME COURT

Michaelmas Term

On appeal from: [2014] CSIH 61

Appellant

Tom Kark QC Kenneth Hamer (Instructed by General Pharmaceutical Council, Professionals Regulation (Fitness to Practise))

First Intervener

Andrew Smith QC Rory Holmes (Instructed by General Medical Council Legal)

Advocate to the Court

Kay Springham QC Jillian Martin-Brown (Directly Appointed)

Respondent

In person (Assisted by Graham Edwards)

Second Intervener

Jenni Richards QC (Instructed by Bircham Dyson Bell LLP)

Lord Wilson

(with whom Lord Neuberger, Lord Reed, Lord CarnwathandLord Hodgeagree)

A: THE ISSUE

1

The disciplinary panels of bodies which regulate professional conduct conventionally have power to suspend a professional's right to practise for a specified period. They do so by directing that the entry of his (or her) name on the professional register be suspended for the specified period. Usually that power is accompanied by a power (but occasionally by a duty) of a panel to conduct a later review of the suspension in order to determine whether to direct its continuation beyond the specified period or to make some other direction. This appeal concerns the ambit of the inquiry which, in the case of one of these disciplinary panels, should be undertaken in the course of a review.

2

In 2002 Mr Khan was registered as a pharmacist. He practised in Glasgow. In 2012 the General Pharmaceutical Council ("the council"), by its registrar, referred to its Fitness to Practise Committee ("the committee") an allegation that his fitness to practise as a pharmacist was impaired by reason of criminal convictions which had been recorded against him. On 27 June 2013 the committee found that the impairment of his fitness to practise was established. When it turned to identify the sanction which would properly reflect the gravity of the misconduct for which he had been convicted, the committee rejected the option of suspending his right to practise. Instead it directed that his entry in the register of pharmacists be altogether removed. On 10 July 2014 the Extra Division of the Inner House, Court of Session, allowed his appeal against the direction for removal. The court (comprising Lord Eassie, Lord Drummond Young and Lord Wheatley) quashed the direction and remitted the case to the committee for it to determine the appropriate sanction in the light of its Opinion, which was delivered by Lord Drummond Young.

3

In the course of its Opinion the Extra Division noted that:

(a) the committee had exercised its power under article 54(2)(c) of the Pharmacy Order 2010, SI 2010 No 231, ("the Order"), which has effect in Scotland as well as in England and Wales, to direct "that the entry in the Register of the person concerned be removed";

(b) article 57(2)(a) of the Order would disable Mr Khan from applying for the restoration of his entry in the register before the expiry of five years from the date of its removal;

(c) the power under article 54(2)(d) of the Order to suspend a person's entry in the register was limited to suspension "for such period not exceeding 12 months as may be specified in the direction"; and

(d) the committee had concluded (and, so the court impliedly held, had reasonably concluded) that suspension of Mr Khan's entry for no longer than 12 months would be insufficient to mark the gravity of his misconduct.

4

At that point, however, the Extra Division observed that, in considering and rejecting the option of suspending Mr Khan's entry in the register, the committee had made no mention of its power under article 54(3)(a)(ii) of the Order to conduct a review following a direction for suspension and thereupon to direct that "the suspension of the entry be extended for such further period not exceeding 12 months as may be specified in the direction, starting from the time when the period of suspension would otherwise expire". A review can be conducted at any time but will ordinarily take place towards the end of the period of suspension; and it is usual for a committee which imposes a period of suspension to direct that a review should take place.

5

In relation to the power to conduct a later review, the Extra Division then proceeded to make statements of law which precipitate the council's appeal to this court. It held that:

(a) there was "a middle way" between suspension for 12 months, which the committee had considered to be insufficient, and removal, which, as it had acknowledged, perhaps appeared harsh;

(b) those two choices therefore represented "a false dichotomy";

(c) in the light of the power to conduct a later review, and indeed to conduct even later reviews, it had been reasonably incidental to the original committee's power of suspension for 12 months for it "to indicate that it considered that the suspension should be extended thereafter, for a further 12 months or longer as the case might be";

(d) although the indication of the original committee would not bind the review committee, "it must be assumed that the later Committee will act in a reasonable manner and will respect the decision and findings of the earlier Committee"; and

(e) "the later Committee will be obliged to respect the indication and if it departs from it will be expected to give reasons for doing so".

6

So the question raised by the appeal surrounds the ambit of a review hearing following suspension. It asks specifically: can the power of a review committee to direct suspension beyond the year of the original suspension be so exercised as to reflect a conclusion that the gravity of the registrant's misconduct demanded a longer period of suspension than that of one year which could not have been exceeded in the direction given by the original committee?

7

To this specific question the council invites the court to answer: no.

8

This court's conclusion will directly inform the ambit of a review following a direction of suspension only when it is conducted under article 54(3)(a) of the Order. But the regulatory systems relating to professions other than that of pharmacy make similar provisions for review following suspension. If the detail of their provisions were to disclose relevant differences from those set out in the Order, this court's judgment would not be applicable to them without adjustment. In the absence of relevant differences, however, today's judgment will carry persuasive authority in relation to them. Recognition of its potentially wider significance has prompted two interventions in the appeal to this court.

9

The first intervener is the General Medical Council ("the GMC"). Under subsection (2)(b) of section 35D of the Medical Act 1983 the Medical Practitioners Tribunal (as it is now called), upon finding that a practitioner's fitness is impaired, may direct that his registration shall be suspended for such period not exceeding 12 months as it may specify; under subsection (4A) the tribunal may attach a direction that a review of the direction of suspension be conducted prior to its expiry; and under subsection (5)(a) the tribunal which conducts the review may direct that the period of suspension be extended, albeit not, save exceptionally, for more than 12 months at a time. The provisions for review of suspension therefore appear similar to those in the Order. The first intervener joins the council in inviting the court to answer the specific question: no.

10

The second intervener is the Health and Care Professions Council, which regulates about 350,000 people in 16 different health and care professions, now including social workers in England. Under article 29(5)(b) of the Health and Social Work Professions Order 2001, SI 2002 No 254, its Conduct and Competence Committee, upon finding that a registrant's fitness to practise is impaired, may direct suspension of his registration for a period not exceeding one year; and under article 30(1)(a) and (5) the committee is required to review the direction prior to expiry of the suspension and can then extend it but by no more than a year at a time. Apart from its mandatory nature, the provisions for a review of suspension therefore appear similar to those in the Order. The second intervener describes its approach to the appeal as nuanced. At first it seemed almost elusive. By the end of the hearing, however, its submission became clear, namely that the Extra Division's analysis of the ambit of the power of a review committee had been essentially correct; and in this submission it was joined by the Advocate to the Court.

11

Mr Khan appears in person albeit with the considerable assistance of Mr Edwards. He seeks to defend the Extra Division's analysis, which he himself had urged upon it; but, in case the council's appeal were to succeed, he mounts a cross-appeal to the effect that in any event the committee's direction for his removal from the register was, in the light of the nature of his misconduct to which I will now turn, disproportionate.

B: THE MISCONDUCT

12

Mr Khan's misconduct related to the breakdown of his marriage, which has since been dissolved.

13

On 20 July 2010 Mr Khan kicked his wife when she was lying in bed; grabbed

her hair; punched her in the face; dragged her off the bed; and again struck her in the face. Mr Khan was thereupon charged with having assaulted his wife and placed on bail, conditions of which were that he should neither return to the matrimonial home nor contact her.

14

On 8 March 2011, in breach of the conditions, he returned there and contacted her.

15

On 13 May 2011, having pleaded guilty to the assault, Mr Khan was fined £400, ordered to compensate his wife in the sum of £500 and admonished for the breach of the conditions.

16

On 9 March 2012 Mr Khan...

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